For Monday we will be rounding up some e-discovery odds and ends.
Please read the following:
37(f) Safe Harbor and related spoliation issues
In re Krause 367 B.R. 740 (2007) - You can skip to page 765 and read to the end.
Arthur Andersen LLP v. United States 544 U.S. 696 (2005)
International:
Court Holds U.S. Discovery Rules Trump French Law and Hague Convention
Gucci America, Inc. v. Curveal Fashion 2010 WL 808639 (S.D.N.Y.) (PDF)
Overreaching subpoena and statutory protections:
In re Subpoena Duces Tecum to AOL
(18 U.S.C. 2703)
Wednesday, April 7, 2010
Tuesday, April 6, 2010
Prelitigation expenses
There was a question in class on Monday about legal holds, especially in the pre-litigation phase. Basically, the question was - is there any relief from the expense of a legal hold, particularly in a pre-litigation situation? Does it really happen that companies are stuck disrupting their usual practices for a long time when there is a danger that litigation might occur? If so, is this fair?
I struggled with the answer in class, but basically stuck to the "yes" side - Yes a potential litigant has to hold on to relevant information no matter what.
That's basically the case now. As an extreme example, take Adams v. Dell. Dell received notice in 2005 that Adams was thinking of suing the company based on alleged patent infringement happening roughly around 2000 and before. Dell argued that the date for the legal hold should have been the receipt of the demand letter in 2005. The court held that, for a number of reasons, Dell should have known sometime in 1999 or 2000 that a suit was likely.
E-discovery and legal hold expert John Jablonski suggested in an episode of ESI Bytes that the case might be an anomaly, or that one of the defendants might have rubbed the judge the wrong way.
Even if the temporal limits of a litigation hold can be rather tough, there are some things a potential litigant (probably the defendant) can do.
In the same podcast, Jablonski touted the importance of carefully constructed litigation holds. He said a common misstep is to over-preserve, successfully avoiding sanctions, but spending a ton in the process.
"A legal hold with a narrow scope is probably the best way for defendants to save money," he said.
Using IT staff and a "data map" parties (usually defendants on this end of it) can make an argument why a limited legal hold was suitable. To take an example I'm making up, if a case involved events at the San Francisco office, there might be no need to preserve from the New York office. With more precision, a company could get even more specific, down to the level of "John Smith's emails from April 2006." The company would need IT staff or someone knowledgeable to testify as to the efforts it had taken and basically how it would be impossible for relevant e-mails to be missing.
Using a "scope analysis" a company could tailor its litigation hold to a level sufficient to avoid sanctions, but hopefully not wasteful. Of course, there will still be some balancing involved as to what the right level is.
The Sedona Conference (not binding, but pretty persuasive) also has a document called The Sedona Conference Commentary on Legal Holds. The Commentary lists a number of "Guidelines" to be considered when crafting a legal hold. Guideline 7 states: "In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered."
This question brings up issues of proportionality in e-discovery, which could open the door to wide-ranging policy debates of the type hinted at in our reading from Monday.
The answer to what a reasonable response is might not be the same for every litigant either. In another ESI Bytes podcast, on proportional e-discovery, Judge James Rosenbaum (Dist. of Minnesota) differentiated between "professional defendants" (think railroads, chemical companies, insurance carriers), and others. Companies that have been through litigation with an e-discovery component before, he said could reasonably be held to a higher standard than individuals or businesses that have never been in such litigation.
Bear in mind also that if there are going to be sanctions for spoliation the mental element needs to be satisfied. (See Zubulake IV Section II "Legal Standard"). Up through and including reckless, the party seeking a spoliation sanction still has to prove that the destroyed evidence would have been relevant. Only at "willful" does it become presumed that "spoliator's mental culpability itself evidence of the relevance of the documents destroyed." (Some state courts apply a different standard playing around with the mental states a bit.)
There has also been some controversy between companies and their insurance carriers about what pre-litigation expenses should come under their insurance policies. This could include litigation holds.
Since e-discovery is a world populated by so many vendors, there are also many options for for companies that want to apply software in-house to reduce legal hold and e-discovery costs. (See here, and here).
Finally, in the first podcast noted above Jablonski mentioned that defendants (usually the ones subject to the legal hold) have been agitating at the policy level for changes to the FRCP that might make their load easier, such as perhaps pushing back "trigger dates."
I struggled with the answer in class, but basically stuck to the "yes" side - Yes a potential litigant has to hold on to relevant information no matter what.
That's basically the case now. As an extreme example, take Adams v. Dell. Dell received notice in 2005 that Adams was thinking of suing the company based on alleged patent infringement happening roughly around 2000 and before. Dell argued that the date for the legal hold should have been the receipt of the demand letter in 2005. The court held that, for a number of reasons, Dell should have known sometime in 1999 or 2000 that a suit was likely.
E-discovery and legal hold expert John Jablonski suggested in an episode of ESI Bytes that the case might be an anomaly, or that one of the defendants might have rubbed the judge the wrong way.
Even if the temporal limits of a litigation hold can be rather tough, there are some things a potential litigant (probably the defendant) can do.
In the same podcast, Jablonski touted the importance of carefully constructed litigation holds. He said a common misstep is to over-preserve, successfully avoiding sanctions, but spending a ton in the process.
"A legal hold with a narrow scope is probably the best way for defendants to save money," he said.
Using IT staff and a "data map" parties (usually defendants on this end of it) can make an argument why a limited legal hold was suitable. To take an example I'm making up, if a case involved events at the San Francisco office, there might be no need to preserve from the New York office. With more precision, a company could get even more specific, down to the level of "John Smith's emails from April 2006." The company would need IT staff or someone knowledgeable to testify as to the efforts it had taken and basically how it would be impossible for relevant e-mails to be missing.
Using a "scope analysis" a company could tailor its litigation hold to a level sufficient to avoid sanctions, but hopefully not wasteful. Of course, there will still be some balancing involved as to what the right level is.
The Sedona Conference (not binding, but pretty persuasive) also has a document called The Sedona Conference Commentary on Legal Holds. The Commentary lists a number of "Guidelines" to be considered when crafting a legal hold. Guideline 7 states: "In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered."
This question brings up issues of proportionality in e-discovery, which could open the door to wide-ranging policy debates of the type hinted at in our reading from Monday.
The answer to what a reasonable response is might not be the same for every litigant either. In another ESI Bytes podcast, on proportional e-discovery, Judge James Rosenbaum (Dist. of Minnesota) differentiated between "professional defendants" (think railroads, chemical companies, insurance carriers), and others. Companies that have been through litigation with an e-discovery component before, he said could reasonably be held to a higher standard than individuals or businesses that have never been in such litigation.
Bear in mind also that if there are going to be sanctions for spoliation the mental element needs to be satisfied. (See Zubulake IV Section II "Legal Standard"). Up through and including reckless, the party seeking a spoliation sanction still has to prove that the destroyed evidence would have been relevant. Only at "willful" does it become presumed that "spoliator's mental culpability itself evidence of the relevance of the documents destroyed." (Some state courts apply a different standard playing around with the mental states a bit.)
There has also been some controversy between companies and their insurance carriers about what pre-litigation expenses should come under their insurance policies. This could include litigation holds.
Since e-discovery is a world populated by so many vendors, there are also many options for for companies that want to apply software in-house to reduce legal hold and e-discovery costs. (See here, and here).
Finally, in the first podcast noted above Jablonski mentioned that defendants (usually the ones subject to the legal hold) have been agitating at the policy level for changes to the FRCP that might make their load easier, such as perhaps pushing back "trigger dates."
Monday, April 5, 2010
E-Discovery resources online
If you think e-discovery is interesting at all, we have only scratched the surface. The law is still developing very quickly. I get a lot of my information from the web. Here are a few suggested sources:
- This pocket guide for judges is helpful.
- There are a number of electronic discovery blogs. Two good ones are:
- EDD update
- Electronic discovery blog
- Craig Ball is a lawyer and electronic discovery expert whose web page is full of useful information.
- Finally, ESI Bytes is a good all-purpose page. I mentioned this one early in the semester because I like to listen to the podcasts. You can also get to the podcasts through iTunes.
I'm sure there plenty more out there, and since this is just a very quick overview, if you are interested at all, you might want to do some of your own hunting.
- This pocket guide for judges is helpful.
- There are a number of electronic discovery blogs. Two good ones are:
- EDD update
- Electronic discovery blog
- Craig Ball is a lawyer and electronic discovery expert whose web page is full of useful information.
- Finally, ESI Bytes is a good all-purpose page. I mentioned this one early in the semester because I like to listen to the podcasts. You can also get to the podcasts through iTunes.
I'm sure there plenty more out there, and since this is just a very quick overview, if you are interested at all, you might want to do some of your own hunting.
Monday, March 29, 2010
Readings explanation
Here is a recap of what we have asked you to look out for in the readings for next week.
Playboy:
- Use of a special master / officer of the court to handle forensics
- Recoverability of deleted information
- Note who is paying the cost.
Zubulake I
- Seven factor cost shifting test
- Use of a sample of backup tapes.
Zubulake III
- Search method used
- Cost issues
- Application of cost-shifting test
Zubulake IV
- Trigger date - When did the duty to preserve arise?
- Standard for adverse inference
Zubulake V
- General listing of UBS discovery violations
- Adverse inference
We will pick up the 2006 FRCP amendments and the 2009 VRCP amendments later (We probably won't get to them Wednesday.)
The Pension Plan of The University of Montreal case linked below is not required reading. It is, however, the latest development in e-discovery law, dealing with the timing and execution of litigation holds.
Playboy:
- Use of a special master / officer of the court to handle forensics
- Recoverability of deleted information
- Note who is paying the cost.
Zubulake I
- Seven factor cost shifting test
- Use of a sample of backup tapes.
Zubulake III
- Search method used
- Cost issues
- Application of cost-shifting test
Zubulake IV
- Trigger date - When did the duty to preserve arise?
- Standard for adverse inference
Zubulake V
- General listing of UBS discovery violations
- Adverse inference
We will pick up the 2006 FRCP amendments and the 2009 VRCP amendments later (We probably won't get to them Wednesday.)
The Pension Plan of The University of Montreal case linked below is not required reading. It is, however, the latest development in e-discovery law, dealing with the timing and execution of litigation holds.
E-discovery links
Some links as we start talking about e-discovery are:
Zubulake I
Zubulake III
Zubulake IV
Zubulake V
Here is a link to the 2006 amendments to the FRCP, with a lot of attention given to e-discovery issues.
Vermont 2009 amendments, largely based on federal amendments.
The latest important case - also from Judge Scheindlin: "Zubulake Revisited"
One more older case: Playboy v. Welles
Zubulake I
Zubulake III
Zubulake IV
Zubulake V
Here is a link to the 2006 amendments to the FRCP, with a lot of attention given to e-discovery issues.
Vermont 2009 amendments, largely based on federal amendments.
The latest important case - also from Judge Scheindlin: "Zubulake Revisited"
One more older case: Playboy v. Welles
Tuesday, March 16, 2010
Defining the practice of law
Part of our discussion yesterday had to do with the question of what exactly is the practice of law. This has never been an easy question. The ABA tried and failed to put forth a model definition of the practice of law. The Model Rules prohibit unlicensed practice, but do not attempt to define the term "practice." One has to turn to the official comment to get the guidance that "The definition of the practice of law is established by law and varies from one jurisdiction to another." (Official comment to Rule 5.5)
If you look at the following definitions from various states, some by statue (maybe even some by rule - I haven't read all 51), you'll see they do vary quite a bit.
It isn't necessarily something one can know by "smell test" or "gut feelings." I can think of one time when I complained to a practicing Vermont lawyer about how people tend to ask law students (or recent graduate friends) annoying legal advice questions. I never want to answer those questions. I see possible liability - especially since I am still not admitted to the Vermont bar (although I will be March 31, 2010). However, the lawyer said I should be fine answering casual legal questions for friends because I was not doing it for money. Look at Vermont's definition based on In Re Welch in the link above. I sure think one could violate that one without charging any fees. In Alabama (just to pick a random example from the top of the list), it seems like you might be okay if you don't appear in court or charge a fee. (Anyone want to be the one to test that?)
If you look at the following definitions from various states, some by statue (maybe even some by rule - I haven't read all 51), you'll see they do vary quite a bit.
It isn't necessarily something one can know by "smell test" or "gut feelings." I can think of one time when I complained to a practicing Vermont lawyer about how people tend to ask law students (or recent graduate friends) annoying legal advice questions. I never want to answer those questions. I see possible liability - especially since I am still not admitted to the Vermont bar (although I will be March 31, 2010). However, the lawyer said I should be fine answering casual legal questions for friends because I was not doing it for money. Look at Vermont's definition based on In Re Welch in the link above. I sure think one could violate that one without charging any fees. In Alabama (just to pick a random example from the top of the list), it seems like you might be okay if you don't appear in court or charge a fee. (Anyone want to be the one to test that?)
Tuesday, March 9, 2010
Open data, open government
Structured and machine-readable data can help governments open up to public participation. Washington D.C. is a prime example in the United States. The city releases 428 data sets, ranging from vacant property, to purchase orders, to almost-real-time crime statistics. The data are delivered in a variety of formats (XML, KML, RSS, and others on a dedicated city Web site.
Developers can take the data and do what they will with it. One example is Stumble Safely that takes continually updated crime information and combines it with the location of bars and night spots to help revelers plan a safe night out. Information can also flow the other way. Award winners in a recent Apps for Democracy community edition contest was a program that allows iPhone users to place service requests to the city through the app, Fix My City DC. The app takes advantage of the city's first-in-the-world open 311 API. The system is an API (Application Programming Interface) - that is a program that lets other apps and programs talk to each other. In this case it allows app users to plug right in to the city's 311 system (for non-emergency service needs, as opposed to 911.) The app also takes advantage of other iPod features such as the ability to submit pictures of that monster pothole that are automatically geo-tagged with the exact spot.
I heard about this and other open-government initiatives at the launch conference for the University of Ottawa's Centre for Law, Technology and Society. One of the speakers, David Eaves, was detailing a list of crowd-sourcing and Web 2.0 friendly initiatives in that city. Among these were an app that lets users know in advance when their garbage pickup is (since Vancouver rotates its schedule.) Another new idea is using the Web game Foursquare to monitor how busy bus routes are, adding new buses on the fly if a given route is overloaded.
Another speaker was Daniel Schuman of the Washington, D.C. Sunlight Foundation. Schuman talked about some open government issues in the United States. He linked the issue to the recent Citizens United decision, claiming that if the flood of money into politics cannot be held back, at least it can be monitored. Schuman was enthusiastic about data.gov, a site where the federal government is releasing much information, sometimes in structured (XML, etc.) format. He cited two recent success stories, both involving Congress. The Sunlight Foundation has been able to cross reference data for lobbyists and members of congress to find instances when they have not always matched. Another project mapped the business interest of member of congress. (The main link seems to be having trouble right now. I believe the data behind this story came from the project.)
When government releases information in structured format, apps can be built to tie right into it. In Vancouver this has been made possible by the city's embrace of open-source software and sharing as much information as possible in open standards. (See here.) As you can see from the data.gov site here in the U.S., some of the American federal data is available in such structured formats (and D.C. has those 428 data streams). I asked Eaves and Schuman about standards in the data they get from governments and got two different answers. Citizens in Vancouver have been fairly successful at getting the government to release information in structured format. Schuman said that while that would be best, the Sunlight Foundation often has to settle for old fashioned paper or PDFs that someone else then has to code in to whatever system they are using.
One obstacle that had to be overcome for Vancouver was legal language that Eaves said screamed "Go away!". He showed a slide of proposed language from the city's license to use its open data. It had lots of clauses and disclaimers that were scary looking to the user. Eventually the city settled on less-scary sounding terms of use and a Creative Commons license asking only that credit for the information be given to the city of Vancouver.
Developers can take the data and do what they will with it. One example is Stumble Safely that takes continually updated crime information and combines it with the location of bars and night spots to help revelers plan a safe night out. Information can also flow the other way. Award winners in a recent Apps for Democracy community edition contest was a program that allows iPhone users to place service requests to the city through the app, Fix My City DC. The app takes advantage of the city's first-in-the-world open 311 API. The system is an API (Application Programming Interface) - that is a program that lets other apps and programs talk to each other. In this case it allows app users to plug right in to the city's 311 system (for non-emergency service needs, as opposed to 911.) The app also takes advantage of other iPod features such as the ability to submit pictures of that monster pothole that are automatically geo-tagged with the exact spot.
I heard about this and other open-government initiatives at the launch conference for the University of Ottawa's Centre for Law, Technology and Society. One of the speakers, David Eaves, was detailing a list of crowd-sourcing and Web 2.0 friendly initiatives in that city. Among these were an app that lets users know in advance when their garbage pickup is (since Vancouver rotates its schedule.) Another new idea is using the Web game Foursquare to monitor how busy bus routes are, adding new buses on the fly if a given route is overloaded.
Another speaker was Daniel Schuman of the Washington, D.C. Sunlight Foundation. Schuman talked about some open government issues in the United States. He linked the issue to the recent Citizens United decision, claiming that if the flood of money into politics cannot be held back, at least it can be monitored. Schuman was enthusiastic about data.gov, a site where the federal government is releasing much information, sometimes in structured (XML, etc.) format. He cited two recent success stories, both involving Congress. The Sunlight Foundation has been able to cross reference data for lobbyists and members of congress to find instances when they have not always matched. Another project mapped the business interest of member of congress. (The main link seems to be having trouble right now. I believe the data behind this story came from the project.)
When government releases information in structured format, apps can be built to tie right into it. In Vancouver this has been made possible by the city's embrace of open-source software and sharing as much information as possible in open standards. (See here.) As you can see from the data.gov site here in the U.S., some of the American federal data is available in such structured formats (and D.C. has those 428 data streams). I asked Eaves and Schuman about standards in the data they get from governments and got two different answers. Citizens in Vancouver have been fairly successful at getting the government to release information in structured format. Schuman said that while that would be best, the Sunlight Foundation often has to settle for old fashioned paper or PDFs that someone else then has to code in to whatever system they are using.
One obstacle that had to be overcome for Vancouver was legal language that Eaves said screamed "Go away!". He showed a slide of proposed language from the city's license to use its open data. It had lots of clauses and disclaimers that were scary looking to the user. Eventually the city settled on less-scary sounding terms of use and a Creative Commons license asking only that credit for the information be given to the city of Vancouver.
Wednesday, March 3, 2010
Data wranglers?
Our discussion in class today made me think of the related concepts of information overload and the lawyer's job as data wrangler (I think I made that one up.)
I'm offering this Wired magazine article as a further addition to our XML conversation, particularly the parts to do with XBRL and SEC-mandated reporting.
Here's a neat excerpt from Wired:
"But the volume of data obscures more than it reveals; financial reporting has become so transparent as to be invisible.... Undoubtedly, the warning signs of our current crisis - and the next one! - lie somewhere in all those [securities] filings, but good luck finding them."
However, this theme of information overload is going to be a recurring one in the rest of this course and in our lives. We'll talk about it more especially when we discuss e-discovery.
But just think about how much more information there is out there now. It holds true on any level, whether its computer storage space. I remember the first time I heard of a 100GB hard drive thinking it was ridiculous. Now 1TB (terabyte) is no big deal. I won't be surprised when 1 PB (Petabyte) rolls around in a few years. This is also true for the ever-increasing tide of SEC filings. We are also consuming more information ourselves, as this study (among many others) attests. What will be the effects?
In a more business-oriented context, the special report at the center of this week's Economist magazine is on "The Data Deluge." I haven't had a chance to read it yet, but I look forward to it. I also encourage you to think about what this information explosion means to the future of lawyers and if there is anything to my "data wrangler" idea.
I'm offering this Wired magazine article as a further addition to our XML conversation, particularly the parts to do with XBRL and SEC-mandated reporting.
Here's a neat excerpt from Wired:
"But the volume of data obscures more than it reveals; financial reporting has become so transparent as to be invisible.... Undoubtedly, the warning signs of our current crisis - and the next one! - lie somewhere in all those [securities] filings, but good luck finding them."
However, this theme of information overload is going to be a recurring one in the rest of this course and in our lives. We'll talk about it more especially when we discuss e-discovery.
But just think about how much more information there is out there now. It holds true on any level, whether its computer storage space. I remember the first time I heard of a 100GB hard drive thinking it was ridiculous. Now 1TB (terabyte) is no big deal. I won't be surprised when 1 PB (Petabyte) rolls around in a few years. This is also true for the ever-increasing tide of SEC filings. We are also consuming more information ourselves, as this study (among many others) attests. What will be the effects?
In a more business-oriented context, the special report at the center of this week's Economist magazine is on "The Data Deluge." I haven't had a chance to read it yet, but I look forward to it. I also encourage you to think about what this information explosion means to the future of lawyers and if there is anything to my "data wrangler" idea.
XML in legislation
Legislatures and governments have been using XML in a variety of ways. One way would be to actually draft legislation in XML. This is discussed in an American context here.
Another way is to use XML as a means of promoting open government. This is discussed here (beginning on page 119).
There is also some very interesting stuff going on in Europe right now using XML in a multilingual setting where multiple drafts are needed of multiple versions of bills in many official languages. See here.
Another way is to use XML as a means of promoting open government. This is discussed here (beginning on page 119).
There is also some very interesting stuff going on in Europe right now using XML in a multilingual setting where multiple drafts are needed of multiple versions of bills in many official languages. See here.
Tuesday, March 2, 2010
General counsel should choose firms that use document assembly
Post from Law Department Management blog here.
My starred Google Reader feed
A few weeks ago I decided to try something new, and I linked my starred Google Reader feed on this blog. (It's on the right hand side near the top.)
I star articles for a number of reasons. Sometimes it is because I run out of time when I am reading them and want to be sure to return to them. Sometimes it is just because they are amusing. Sometimes it is because I hope to comment on them or link them from this blog.
Many, possibly even most, of them pertain to topics covered in this class. Many do not.
One interesting effect is that I seem to be starring fewer articles (and probably fewer silly or amusing ones) now that I know there is a possibility somebody else could see my reading list.
I star articles for a number of reasons. Sometimes it is because I run out of time when I am reading them and want to be sure to return to them. Sometimes it is just because they are amusing. Sometimes it is because I hope to comment on them or link them from this blog.
Many, possibly even most, of them pertain to topics covered in this class. Many do not.
One interesting effect is that I seem to be starring fewer articles (and probably fewer silly or amusing ones) now that I know there is a possibility somebody else could see my reading list.
More optimistic takes on expert systems in administrative law
The article by Danielle Citron of course highlighted some of the failures of expert system use in administrative law, such as awarding social benefits.
These two papers describe a somewhat different experience in the Netherlands. Although some problems are acknowledged and the author believes many bureaucrats have too much faith in such systems, the overall tone seems more optimistic.
The concluding paragraph of the article, by Marga Groothuis and Jörgen S. Svensson is as follows:
"Since the problem of juridically correct decision making under great pressure is a
more general phenomenon in public administration, and since the use of expert systems is now becoming more popular, these findings should be generalised. Although expert
systems may indeed support decision making, they will never provide full proof solutions and they will always be limited in their functionality. When the limits of such systems are not clear to the administrative bodies and to the individual users, there is the risk of overreliance. It is a further argument in favour of the view that people who use artificial systems should be made aware of the possibilities and the limits of these tools.[15] Administrative bodies too, should probably take additional measures to keep control over decision quality in fields which are not covered by such computer programmes."
The complete article is here.
These two papers describe a somewhat different experience in the Netherlands. Although some problems are acknowledged and the author believes many bureaucrats have too much faith in such systems, the overall tone seems more optimistic.
The concluding paragraph of the article, by Marga Groothuis and Jörgen S. Svensson is as follows:
"Since the problem of juridically correct decision making under great pressure is a
more general phenomenon in public administration, and since the use of expert systems is now becoming more popular, these findings should be generalised. Although expert
systems may indeed support decision making, they will never provide full proof solutions and they will always be limited in their functionality. When the limits of such systems are not clear to the administrative bodies and to the individual users, there is the risk of overreliance. It is a further argument in favour of the view that people who use artificial systems should be made aware of the possibilities and the limits of these tools.[15] Administrative bodies too, should probably take additional measures to keep control over decision quality in fields which are not covered by such computer programmes."
The complete article is here.
Tuesday, February 9, 2010
How timely! Brand new article on A2J
I didn't know this was coming out, but this seems perfectly timed given that we are just starting to look at A2J. This paper, "All the Wild Possibilities: Technology that Attacks Barriers to Access to Justice" is just out and details the development of A2J.
Paragon Legal
This is the company I mentioned in class, but couldn't remember the name of then. Note the tag line "corporate counsel on demand." It's not explicitly tech-related, but still in that realm of changing approaches to the practice of law.
www.paragonlegal.com
Legal Rebels profile of founder Mae O'Malley.
www.paragonlegal.com
Legal Rebels profile of founder Mae O'Malley.
Getting started with A2J
If anyone was having trouble finding the information you need to get started on A2J, the place to start is here: http://www.a2jauthor.org/drupal/?q=node/244.
Download the starter kit. The PDF file found in the "Authoring Guide" folder is particularly helpful. You probably want to keep it as a PDF file (that is, don't print it) as it is rather large.
You should also check out the training modules. These are neat because they actually use little A2J interview files to show you how to make A2J files. It's a pretty easy way to learn because you can check back and forth to see if your's looks just like the sample one.
I will be available to answer questions about A2J after class on Wednesday and also via e-mail this week.
Download the starter kit. The PDF file found in the "Authoring Guide" folder is particularly helpful. You probably want to keep it as a PDF file (that is, don't print it) as it is rather large.
You should also check out the training modules. These are neat because they actually use little A2J interview files to show you how to make A2J files. It's a pretty easy way to learn because you can check back and forth to see if your's looks just like the sample one.
I will be available to answer questions about A2J after class on Wednesday and also via e-mail this week.
Technological conservatism
Someone asked question in class yesterday (Monday) about the possibility of clients sharing legal work as Susskind suggests might lead to a lack of variety or differentiation if one firm or lawyer's view becomes "the memo" or "the opinion" in a field.
Maybe. I tried to suggest that there might be a market for at least a few varieties, perhaps the "super-safe", "middle-of-the-road", and "really pushing it" versions for firms with different appetites for risk.
In any case, the question reminded me of a this article, "Technological Conservatism...". The author argues that the increased preservation of, organization of, and access to the past made possible by technology actually slows changes. Citing the greatly increased number of citations per brief or journal article, the author writes,
"Sources from the past operate as a “security blanket,” comforting and assuring lawyers of the present with the commendation of antiquity.The dynamic is mostly quantitative. Increasing the number of sources, and thus the amount of reliance on the past, is the apparent trend."
(The author cites, inter alia, a publication by Judge Posner claiming that the average number of citations per federal appellate opinion has increased from 12.4 to 27.2 between 1960 and 2007. Other works cited attest similar increases in citations as well as an overall increase in length of various legal documents.)
Maybe. I tried to suggest that there might be a market for at least a few varieties, perhaps the "super-safe", "middle-of-the-road", and "really pushing it" versions for firms with different appetites for risk.
In any case, the question reminded me of a this article, "Technological Conservatism...". The author argues that the increased preservation of, organization of, and access to the past made possible by technology actually slows changes. Citing the greatly increased number of citations per brief or journal article, the author writes,
"Sources from the past operate as a “security blanket,” comforting and assuring lawyers of the present with the commendation of antiquity.The dynamic is mostly quantitative. Increasing the number of sources, and thus the amount of reliance on the past, is the apparent trend."
(The author cites, inter alia, a publication by Judge Posner claiming that the average number of citations per federal appellate opinion has increased from 12.4 to 27.2 between 1960 and 2007. Other works cited attest similar increases in citations as well as an overall increase in length of various legal documents.)
Monday, February 8, 2010
Easter / HotDocs knowledge base.
The HotDocs knowledge base seems to be in flux, probably because of the recent purchase of HotDocs so it is no longer a LexisNexis product. Nevertheless, there is still a lot of information out there, including strings of code for various functions. One of the more complicated is the calculation (below) to find the date of Easter in a given year.
I hope the knowledge base has been or will soon be set up elsewhere. However, you can still find lots of HotDocs information either elsewhere or by going to the Google cached versions of pages after you google them.
Easter (First Sunday after the Paschal Full Moon (PFM) date)
SET Century TO TRUNCATE( Year / 100, 0 )
SET Temp Var TO TRUNCATE( ( Century - 15) / 2, 0 ) + 202
SET Temp Var TO Temp Var - 11 * REMAINDER( Year, 19 )
IF Century = 21 OR Century = 24 OR Century = 25 OR ( Century >= 27 AND Century <= 32 ) OR Century = 34 OR Century = 35 OR Century = 38
SET Temp Var TO Temp Var - 1
ELSE IF Century = 33 OR Century = 36 OR Century = 37 OR Century = 39 OR Century = 40
SET Temp Var TO Temp Var - 2
END IF
SET Temp Var TO REMAINDER( Temp Var, 30 )
SET Full Moon TO Temp Var + 21
IF Temp Var = 29
SET Full Moon TO Full Moon - 1
END IF
IF Temp Var = 28 AND REMAINDER( Year, 19 ) > 10
SET Full Moon TO Full Moon - 1
END IF
IF Full Moon > 31
SET Full Moon TO Full Moon - 31
DATE OF( Full Moon, 4, Year ) + 1 DAY
ELSE
DATE OF( Full Moon, 3, Year ) + 1 DAY
END IF
IF DAY OF WEEK( RESULT ) != 1
RESULT + ( 8 - DAY OF WEEK( RESULT ) ) DAYS
END IF
I hope the knowledge base has been or will soon be set up elsewhere. However, you can still find lots of HotDocs information either elsewhere or by going to the Google cached versions of pages after you google them.
Easter (First Sunday after the Paschal Full Moon (PFM) date)
SET Century TO TRUNCATE( Year / 100, 0 )
SET Temp Var TO TRUNCATE( ( Century - 15) / 2, 0 ) + 202
SET Temp Var TO Temp Var - 11 * REMAINDER( Year, 19 )
IF Century = 21 OR Century = 24 OR Century = 25 OR ( Century >= 27 AND Century <= 32 ) OR Century = 34 OR Century = 35 OR Century = 38
SET Temp Var TO Temp Var - 1
ELSE IF Century = 33 OR Century = 36 OR Century = 37 OR Century = 39 OR Century = 40
SET Temp Var TO Temp Var - 2
END IF
SET Temp Var TO REMAINDER( Temp Var, 30 )
SET Full Moon TO Temp Var + 21
IF Temp Var = 29
SET Full Moon TO Full Moon - 1
END IF
IF Temp Var = 28 AND REMAINDER( Year, 19 ) > 10
SET Full Moon TO Full Moon - 1
END IF
IF Full Moon > 31
SET Full Moon TO Full Moon - 31
DATE OF( Full Moon, 4, Year ) + 1 DAY
ELSE
DATE OF( Full Moon, 3, Year ) + 1 DAY
END IF
IF DAY OF WEEK( RESULT ) != 1
RESULT + ( 8 - DAY OF WEEK( RESULT ) ) DAYS
END IF
Exari
Exari is another document assembly software system. After a minute or two looking at this site, you will know about as much about as much as Exari as I do.
I suspect it is pretty impressive. From what I understand, Exari can handle very high levels of complexity.
I suspect it is pretty impressive. From what I understand, Exari can handle very high levels of complexity.
Wednesday, February 3, 2010
Self promotion
This is me interviewing Richard Susskind at the Berkman Center last April. (About halfway down the page - audio only.)
If you have a long commute...
I do. I often use it to learn. Three podcasts I'm particularly fond of are:
ESI bytes - about E-Discovery.
This Week in Law - covers a wide array of topics and is very easy to listen to, and often has some humorous moments too.
ESI Report - another e-discovery one.
You can get to all three of these through iTunes too.
ESI bytes - about E-Discovery.
This Week in Law - covers a wide array of topics and is very easy to listen to, and often has some humorous moments too.
ESI Report - another e-discovery one.
You can get to all three of these through iTunes too.
Legal Rebels
The ABAJournal Legal Rebels series is devoted to profiling lawyers who are "remaking the legal profession." So far, it has been pretty tech-heavy.
Two of particular note are:
Richard Granat
Ron Staudt
Two of particular note are:
Richard Granat
Ron Staudt
More document assembly examples.
This is the Wills for Heroes Foundation. Using HotDocs software, the foundation partners with state bar associations to prepare free estate planning documents for first responders.
I don't mean for our focus on pro bono / legal aid uses of HotDocs to imply that it is not also widely used in a commercial settings. The legal aid uses tend to be easier to find, so I have more examples of them.
We briefly looked at some material from the e-lawyering task force of the ABA. The task force's co-chairs are Richard Granat and Marc Lauritsen. Granat has several businesses going, including his own practice. He also runs Directlaw.com, which offers a ready-made platform for those wanting to set up a virtual law office to do so. If you're interested, look around on the page. The blog usually has an evolving list of new virtual law offices that have recently opened up as well. As far as I know, the Directlaw platform uses Rapidocs, a competitor to HotDocs.
Stephanie Kimbro is a lawyer licensed in North Carolina who delivers legal services over the Web. She was honored last year at the ABA Tech Conference with the James I. Keane Memorial Award for delivery of legal services over the Internet. Kimbro Law's site also offers links to many other interesting pieces of information about e-lawyering.
Lauritsen, the other co-chair along with Granat is a founding member of Capstone Practice Systems. Capstone offers consulting and assistance to companies looking to implement document assembly and related systems. Capstone's partial list of clients is illustrative of the higher-dollar market for document assembly work. However, Lauritsen and others from Capstone are regulars at conferences where people working on projects such as the one I am working on discuss the latest in the use of technology in legal aid. Capstone is also on contract with LawLine Vermont and legal aid offices in other states to provide guidance with HotDocs and A2J projects.
I don't mean for our focus on pro bono / legal aid uses of HotDocs to imply that it is not also widely used in a commercial settings. The legal aid uses tend to be easier to find, so I have more examples of them.
We briefly looked at some material from the e-lawyering task force of the ABA. The task force's co-chairs are Richard Granat and Marc Lauritsen. Granat has several businesses going, including his own practice. He also runs Directlaw.com, which offers a ready-made platform for those wanting to set up a virtual law office to do so. If you're interested, look around on the page. The blog usually has an evolving list of new virtual law offices that have recently opened up as well. As far as I know, the Directlaw platform uses Rapidocs, a competitor to HotDocs.
Stephanie Kimbro is a lawyer licensed in North Carolina who delivers legal services over the Web. She was honored last year at the ABA Tech Conference with the James I. Keane Memorial Award for delivery of legal services over the Internet. Kimbro Law's site also offers links to many other interesting pieces of information about e-lawyering.
Lauritsen, the other co-chair along with Granat is a founding member of Capstone Practice Systems. Capstone offers consulting and assistance to companies looking to implement document assembly and related systems. Capstone's partial list of clients is illustrative of the higher-dollar market for document assembly work. However, Lauritsen and others from Capstone are regulars at conferences where people working on projects such as the one I am working on discuss the latest in the use of technology in legal aid. Capstone is also on contract with LawLine Vermont and legal aid offices in other states to provide guidance with HotDocs and A2J projects.
Monday, February 1, 2010
Wednesday, January 27, 2010
Don't fear the math
We will be using almost exclusively text. I did want to show off a couple of math variables, though.
However, if anyone can think of a way to work a simple math calculation into their cover letter, that would be pretty neat.
However, if anyone can think of a way to work a simple math calculation into their cover letter, that would be pretty neat.
More complicated math
Here's one that is considerably more complicated. This calculates average monthly employment income. Do not worry about this. You won't have to do anything this complicated, or even any math at all. I just wanted to show you that this exists. My explanations follow the // in the second version:
0
REPEAT jobcount
IF(Income frequency TE = "Weekly")
SET Income multiplier NU TO 4.333
END IF
IF(Income frequency TE = "Biweekly")
SET Income multiplier NU TO 2.167
END IF
IF(Income frequency TE = "Monthly")
SET Income multiplier NU TO 1
END IF
SET Job pay NU TO (Income multiplier NU) * (Seasonal job months per year NU / 12) * (Pay NU)
RESULT + Job pay NU
END REPEAT
TRUNCATE (RESULT, 2)
0 // the zero at the start tells HotDocs this is a math variable
REPEAT jobcount // We won't worry about this, but this is a loop for multiple jobs
IF(Income frequency TE = "Weekly") // a previous question asked "how often do you get paid?"
SET Income multiplier NU TO 4.333 // We use 4.33 because most months do not really have 28 days
END IF
IF(Income frequency TE = "Biweekly")
SET Income multiplier NU TO 2.167
END IF
IF(Income frequency TE = "Monthly")
SET Income multiplier NU TO 1
END IF
SET Job pay NU TO (Income multiplier NU) * (Seasonal job months per year NU / 12) * (Pay NU)
RESULT + Job pay NU
END REPEAT
TRUNCATE (RESULT, 2)
// An earlier question also asked about seasonal jobs. To get an average monthly pay, we multiply the monthly pay when the person is actually working by the number of months worked. i.e. - A job that brings in $6000 a month six months out of the year averages out to $3000 a month over a full year.
// TRUNCATE (RESULT, 2) This rounds the result off at two decimal points because we are talking about dollars and cents. You can truncate to any number of decimal points.
0
REPEAT jobcount
IF(Income frequency TE = "Weekly")
SET Income multiplier NU TO 4.333
END IF
IF(Income frequency TE = "Biweekly")
SET Income multiplier NU TO 2.167
END IF
IF(Income frequency TE = "Monthly")
SET Income multiplier NU TO 1
END IF
SET Job pay NU TO (Income multiplier NU) * (Seasonal job months per year NU / 12) * (Pay NU)
RESULT + Job pay NU
END REPEAT
TRUNCATE (RESULT, 2)
0 // the zero at the start tells HotDocs this is a math variable
REPEAT jobcount // We won't worry about this, but this is a loop for multiple jobs
IF(Income frequency TE = "Weekly") // a previous question asked "how often do you get paid?"
SET Income multiplier NU TO 4.333 // We use 4.33 because most months do not really have 28 days
END IF
IF(Income frequency TE = "Biweekly")
SET Income multiplier NU TO 2.167
END IF
IF(Income frequency TE = "Monthly")
SET Income multiplier NU TO 1
END IF
SET Job pay NU TO (Income multiplier NU) * (Seasonal job months per year NU / 12) * (Pay NU)
RESULT + Job pay NU
END REPEAT
TRUNCATE (RESULT, 2)
// An earlier question also asked about seasonal jobs. To get an average monthly pay, we multiply the monthly pay when the person is actually working by the number of months worked. i.e. - A job that brings in $6000 a month six months out of the year averages out to $3000 a month over a full year.
// TRUNCATE (RESULT, 2) This rounds the result off at two decimal points because we are talking about dollars and cents. You can truncate to any number of decimal points.
Some simple math computations
Here are a few simple math computations drawn from the Vermont divorce financial affidavit I'm working on.
To total some variables-- This one totals household expenses:
Total household affiant CO + Total vehicle affiant CO + Total insurance affiant CO + Total personal expenses affiant CO + Total monthly credit card affiant NU
Note that some of those are computational variables, so there are two layers of computation going on.
To subtract -- This one is for business income:
Bus monthly gross receipts NU - Total business expenses CO
To total some variables-- This one totals household expenses:
Total household affiant CO + Total vehicle affiant CO + Total insurance affiant CO + Total personal expenses affiant CO + Total monthly credit card affiant NU
Note that some of those are computational variables, so there are two layers of computation going on.
To subtract -- This one is for business income:
Bus monthly gross receipts NU - Total business expenses CO
Correct full address computation
The reason the computation variable was not working was because I was forgetting to put in the "RESULT +" command. Here's how it looks when it's working fine:
Address line 1 TE + "
"
IF ANSWERED(Address line 2 TE)
RESULT + Address line 2 TE + "
"
END IF
RESULT + City TE + ", " + State MC + " " + Zip TE
"RESULT +" Carries down everything that has come before. Without the missing RESULT (in bold up there) every time there was a line 2 it was replacing the line 1.
Address line 1 TE + "
"
IF ANSWERED(Address line 2 TE)
RESULT + Address line 2 TE + "
"
END IF
RESULT + City TE + ", " + State MC + " " + Zip TE
"RESULT +" Carries down everything that has come before. Without the missing RESULT (in bold up there) every time there was a line 2 it was replacing the line 1.
Tuesday, January 26, 2010
4th Amendment confusion regarding electronic searches
This might be jumping ahead a little bit, but it is still pretty interesting. As this post from the Volokh Conspiracy tells us, there is now a pretty clear circuit split on how the plain view exception to the warrant requirement under the 4th amendment should apply in electronic search requirements.
The cases in question are linked from the blog post.
I have to admit that the only one of these cases I know anything about (yet) is United States v. Comprehensive Drug Testing (9th Circuit), and I've only read a synopsis of it, not the whole opinion. It set out a very protective set of guidelines for how to protect 4th amendment rights in electronic searches. The others from the 4th and 10th Circuits, maybe not so much.
They're all on my to read list.
The cases in question are linked from the blog post.
I have to admit that the only one of these cases I know anything about (yet) is United States v. Comprehensive Drug Testing (9th Circuit), and I've only read a synopsis of it, not the whole opinion. It set out a very protective set of guidelines for how to protect 4th amendment rights in electronic searches. The others from the 4th and 10th Circuits, maybe not so much.
They're all on my to read list.
A2J Author 3.0 released
A2J Author 3.0 has just been released by the Center for Access to Justice and Technology and CALI (Computer Aided Legal Instruction.)
A2J is most often used in tandem with HotDocs to help pro-se litigants fill out court forms. However, some organizations have also used A2J to give advice or help with client intake.
Here's a neat presentation that actually used A2J (instead of PowerPoint or something similar) to do the presentation about A2J: http://www.a2jauthor.org/viewer/shared/A2JViewer.php?interviewID=2009-05-30-17-27-57
You can also see some links to actual A2J interviews as they are used in some states right now: http://www.kentlaw.edu/cajt/A2JAuthor.html (the examples are near the bottom of the page.)
Finally, here is a link to a release from CALI about the new A2J 3.0.
http://www.cali.org/blog/2010/01/21/a2j-author-30-released
We'll look at A2J in the next few weeks.
A2J is most often used in tandem with HotDocs to help pro-se litigants fill out court forms. However, some organizations have also used A2J to give advice or help with client intake.
Here's a neat presentation that actually used A2J (instead of PowerPoint or something similar) to do the presentation about A2J: http://www.a2jauthor.org/viewer/shared/A2JViewer.php?interviewID=2009-05-30-17-27-57
You can also see some links to actual A2J interviews as they are used in some states right now: http://www.kentlaw.edu/cajt/A2JAuthor.html (the examples are near the bottom of the page.)
Finally, here is a link to a release from CALI about the new A2J 3.0.
http://www.cali.org/blog/2010/01/21/a2j-author-30-released
We'll look at A2J in the next few weeks.
Monday, January 25, 2010
Corrected link
The link to find Darryl Mountain's "Could New Technologies..." didn't seem to be working before. Here it is again:
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_1/mountain/
If you want to print it, you can also find it online in Hein Online through the VLS library.
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_1/mountain/
If you want to print it, you can also find it online in Hein Online through the VLS library.
Wednesday, January 20, 2010
Lessons from "The British Nationality Act as Logic Program"
The following are some points I hoped you could take away from the British Nationality Act paper;
- Case law / statute law difference for purposes of programming
- Role of vagueness / limits of machines
- Affect of programming on formalizing thought about the area of law being programmed
- Difference between "simulating legal reasoning" and "implementing rules and regulations"
- Applicability of techniques of programming legal rules to other rules such as business or organizational rules
- Concept of "expert systems"
- Decision tree model
- Thinking about what legal subject areas are appropriate for programming and what are not
If you missed some of these, most of them are passed over in the introduction and conclusion. Try reading 370-375 and 383-end.
- Case law / statute law difference for purposes of programming
- Role of vagueness / limits of machines
- Affect of programming on formalizing thought about the area of law being programmed
- Difference between "simulating legal reasoning" and "implementing rules and regulations"
- Applicability of techniques of programming legal rules to other rules such as business or organizational rules
- Concept of "expert systems"
- Decision tree model
- Thinking about what legal subject areas are appropriate for programming and what are not
If you missed some of these, most of them are passed over in the introduction and conclusion. Try reading 370-375 and 383-end.
A2J examples
Click here to link to some examples of A2J interviews from other states. The interviews are near the bottom of the page and can be tried out to see how the system works.
AI issues beyond the scope of this course
The following provide links to some work, including some on case-based and analogical systems, that is beyond the scope of our digital drafting course. Especially check out some of the titles linked through Jurix.
Jurix
International Association for Artificial Intelligence and Law
Jurix
International Association for Artificial Intelligence and Law
Some examples from class
These are the links I was suggesting during class:
Seravia
Bryan Cave online expert systems
Orrick term sheet generator
Seravia
Bryan Cave online expert systems
Orrick term sheet generator
Commodification
As of 1992, William C. Cobb, chair of the second ABA Seize the Future conference, "estimated that 60% of all available legal work can be considered commodity work because clients feel that any good lawyer could perform the services."
Stephen P. Gallagher How Should Law Firms Respond to New Forms of Competition 52 Syracuse L. Rev. 1049 at 1054 (2002)
"Commodified knowledge is turned into homogenized products or commodities that can be purchased and used off the shelf, while routinization renders erstwhile high-level work amenable to routine performance by less-skilled persons or even machines."
George C. Nnona Situating Multidisciplinary Practice Within Social History: A Systematic Analysis of Inter-Professional Competition 80 St. John's L. Rev. 849 at 873 (2006).
In the paper by Darryl Mountain assigned for the Jan. 25 class, note how Mountain states that in a commoditized market, "[l]awyers maintain a residual role to address risks not covered by the commoditized product. But the bulk of the work falls to lawyers who act as kegal knowledge engineers in updating the online systems. In that role they have little or not contact with clients." 52 Syracuse L. Rev. 1065 at 1071
Susskind: "There is no legal job whose complexity and value elevates it entirely beyond market forces. The reality is that significant parts of even the biggest transactions and disputes are repetitive and routine." Rio Tinto Deal Heralds Huge Changes.
Stephen P. Gallagher How Should Law Firms Respond to New Forms of Competition 52 Syracuse L. Rev. 1049 at 1054 (2002)
"Commodified knowledge is turned into homogenized products or commodities that can be purchased and used off the shelf, while routinization renders erstwhile high-level work amenable to routine performance by less-skilled persons or even machines."
George C. Nnona Situating Multidisciplinary Practice Within Social History: A Systematic Analysis of Inter-Professional Competition 80 St. John's L. Rev. 849 at 873 (2006).
In the paper by Darryl Mountain assigned for the Jan. 25 class, note how Mountain states that in a commoditized market, "[l]awyers maintain a residual role to address risks not covered by the commoditized product. But the bulk of the work falls to lawyers who act as kegal knowledge engineers in updating the online systems. In that role they have little or not contact with clients." 52 Syracuse L. Rev. 1065 at 1071
Susskind: "There is no legal job whose complexity and value elevates it entirely beyond market forces. The reality is that significant parts of even the biggest transactions and disputes are repetitive and routine." Rio Tinto Deal Heralds Huge Changes.
Cloud computing for lawyers
Here's a link to a podcast from the ABA Law Practice Management Section on cloud computing for lawyers. It will play in Quicktime from this link. You can also find it on iTunes. About half an hour.
Virtual Law Office or not?
Stephanie Kimbro, herself a noted virtual law office leader, on what the difference is between a virtual law office and a site offering legal forms.
ABA Ethics 20/20
Technology is one of the main drivers that is causing the ABA to re-examine legal ethics as part of its Ethics 20/20 project.
Read more here.
Read more here.
Heritage Law, British Columbia
Heritage Law has made ample use of technology to follow an innovative business model. The firm's use of technology and its effect on its business model was the cause for this March, 2009 article.
The firm is in the process of expanding its online, technology-enabled presence with a forthcoming heritagelaw.com (not up yet, but you can read about it here.)
Note that the billable hour is often a casualty of technology.
The firm is in the process of expanding its online, technology-enabled presence with a forthcoming heritagelaw.com (not up yet, but you can read about it here.)
Note that the billable hour is often a casualty of technology.
Monday, January 11, 2010
Vermont courts technological reforms.
This Burlington Free Press article is about technological improvements to the Vermont court system. It doesn't mention the program by name, but the assistance system for divorce cases is A2J.
http://m.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20100110/NEWS02/1100305/-1/WAP&template=wapart
http://m.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20100110/NEWS02/1100305/-1/WAP&template=wapart
ABA - "Suggested Minimum Requirements for Law Firms Delivering Legal Services Online"
Linked from here is a draft of rules the ABA Law Practice Management section is discussing to set minimum standards for "e-lawyering."
http://meetings.abanet.org/webupload/commupload/EP024500/relatedresources/Minimum_Requirements_for_Lawyers_2009_10_24.pdf
http://meetings.abanet.org/webupload/commupload/EP024500/relatedresources/Minimum_Requirements_for_Lawyers_2009_10_24.pdf
Arizona ethics opinion on use of the Internet in lawyering
Note the conclusion - security and confidentiality protections must evolve over time. Lawyers should "conduct periodic reviews to ensure that security precautions in place remain reasonable as technology progresses."
http://www.myazbar.org/Ethics/opinionview.cfm?id=704
http://www.myazbar.org/Ethics/opinionview.cfm?id=704
Tuesday, January 5, 2010
Reading for Jan. 18
Please read the following before Jan. 18:
- The British Nationality Act as logic program: Communications of the ACM, 29(5):370--386, May 1986. Available online: http://www.doc.ic.ac.uk/~rak/papers/British%20Nationality%20Act.pdf
- Cass Sunstein: Of artificial intelligence and legal reasoning, Public law and legal theory working paper no. 18, University of Chicago Law School. Available online: papers.ssrn.com/sol3/papers.cfm?abstract_id=289789
- Continue Susskind reading - exact pages to be announced.
- Lauritsen, Fall inline with document assembly. Available online from the Capstone Practice Systems web site: http://www.capstonepractice.com/loc2006.pdf
- The British Nationality Act as logic program: Communications of the ACM, 29(5):370--386, May 1986. Available online: http://www.doc.ic.ac.uk/~rak/papers/British%20Nationality%20Act.pdf
- Cass Sunstein: Of artificial intelligence and legal reasoning, Public law and legal theory working paper no. 18, University of Chicago Law School. Available online: papers.ssrn.com/sol3/papers.cfm?abstract_id=289789
- Continue Susskind reading - exact pages to be announced.
- Lauritsen, Fall inline with document assembly. Available online from the Capstone Practice Systems web site: http://www.capstonepractice.com/loc2006.pdf
Course intro
From: Brock Rutter
To: Digital Drafting spring 2010 class
Re: First day of class – course overview
January, 2010
How are journalism and the practice of law similar? Practitioners of each see themselves as engaged in more than just a way to make a living, but in a profession. As a profession each sees itself as adhering to a sort of code of ethics and has its own set of standards and professional norms. Each of them has also had a relatively stable business model for the last hundred years or more. For lawyers it has been personalized service based on the billable hour. For journalism it has been a model of professional journalists employed by newspapers. The newspapers have made money selling a products at a nominal cost (the cost of buying a paper) making most of their money from selling advertisements.
We shouldn’t overemphasize the similarity between journalists and lawyers. Law is by far an older presentation and has generally been the more prestigious profession. Lawyers were held in high regard by founders of this country, as was a free press. The concept of the rule of law is at the heart of the U.S. Constitution, and it has generally been assumed that it is the job of lawyers to defend the rule of law. Likewise the idea of a free press is enshrined in the Constitution. (Although the free press of the time of the Constitution quite possibly had more in common with a bunch of anonymous bloggers than the professional journalism that developed later.)
Another trait journalism and law have in common is that in their current incarnations both came to be seen as a given – an unchangeable fact of life. It seems natural to assume that the New York Times will always print all the news that’s fit to print and that Big Law will always serve the needs of big corporations, at big prices, paying big salaries, and scooping up the best graduates of the best law schools. Yet, 2008 and 2009 have not been kind to either professional journalism or traditional law as practiced in the big firms. For journalism –scores of regional papers closed, the Boston Globe almost closed, the New York Times was seen as such a bad credit risk it was forced to pay an exorbitant 14 percent interest rate to borrow money. Industry soul-searching about the uncertain future was exemplified by efforts such as “Saving the news: Toward a national strategy for journalism”, a publication dedicated to looking for viable solutions to the newspaper industry’s problems. The last two years have not been kind to the legal profession either. Many firms have either closed or have drastically curtailed hiring.
Technology lies at the heart of both the newspaper industry’s problems and those of the legal profession. The once dominant newspaper of general circulation is now threatened by niche publications and free news – all available over the internet. Meanwhile, new advertising platforms, such as Craigslist, have taken the “bread and butter” of many papers – local advertising, especially classifieds.
Of course it is tempting to speculate that the widespread economic downturn is responsible for a decline in law firm business. However, lawyers have often been able to have it both ways. In the good times the firms transactional and mergers and acquisition departments could make a profit and in the bad times the litigation and bankruptcy departments could do pretty well too. In fact it is often taken as a given that litigation increases in a downturn. However, this downturn there have been real concerns that something might really be changing – that the long dominant law firm business model might be changing.
The dominant business model in question involves two hallmarks; 1) personalized service from the ground up, and 2) big firms with pyramid structures with a few partners at the top and lots of associates at the bottom (doing much of the work). Of course these firms are usually located near the businesses they serve – that is in very expensive parts of town – and employ any of the same signaling techniques once used by banks – big fancy buildings meant to convey strength and permanence. They also incidentally cherish a carefully groomed image for conservatism and risk aversion – a sort of counterweight to the animal spirits of the business clients they help navigate through the world of legal risk. Even if this description is skewed toward big firms serving the needs of businesses, it holds true that in general, we expect lawyers to be conservative, risk averse people. We expect fully customized service, even if it is expensive. And, although exceptions may be more common among smaller firms, the trend has been toward the pyramid-shaped business model.
The unchanging nature of the legal system is so remarkable – and perhaps different from other business sectors – that is almost a truism. At a recent meeting concerning overhaul of the Vermont judiciary, an outside consultant remarked that if an 18th century lawyer was transported to a 21st century courtroom the only difference he would notice would be the lack of wigs and the changed style of dress. Likewise, Richard Susskind, one of the foremost authors on law and technology, remarked to a Canadian bar magazine that not much has changed in the practice of law since the days of Jarndyce and Jarndyce – that is the time of Chares Dickens.
Other examples abound. Property law provides an extreme case. A myriad of antiquated forms and practices survive in part because no lawyer wants to be the one to try something new and have a conveyance later be challenged because she deviated from a time-honored form. While other businesses prodigiously give rise to neologisms, the jargon of law remains steadfastly conservative. Despite the inroads of the plain language movement, when the chips are on the table, most lawyers will not stray from time-honored terms of art.
For whatever reason or reasons, law has notoriously slow to adopt new technologies. A great many still-practicing lawyers can remember when it was seen as nearly scandalous that a lawyer would have a computer on is or her desk and do his or her own typing. That has now changed, but the change came more slowly to law than to other professions. A comparison with (the comparatively upstart) profession of accounting provides an example. Somewhere between ten and twenty years ago, the penetration of technology in the two professions was roughly equal. Accounting adopted technology much more quickly. And while the two business models were previously very similar, many of the trends technology is bringing about in law are much further along in accounting than in law.
Lawyers have long had the luxury of seeing themselves as involved in an endeavor that was somehow special or different from other aspects of business. This may be partly because of law’s dual nature as both a protector of the republic and also as a more mundane transactional formality or economic necessity.
While we would perhaps not want to delegate our First Amendment jurisprudence to a computer program, or outsource a federalism question to smart foreign lawyers willing to work for cheap, a computer program can almost certainly be programmed to provide advice in a bounded area of law – say securities compliance – or prepare a document such as an nondisclosure agreement or a will. While they might not sound as glamorous as arguing the next headline Supreme Court case, relatively repetitive – commoditizable – legal services comprise the bulk – the bread and butter – of the run of the mill business of a great many legal firms.
It is in these areas that technology is making inroads into the business of law. Computer programs are being used to draft contracts, give advice, administer government benefits, and generally allow businesses and individuals to do more without the direct intervention of legal counsel, or in some cases with the preventative involvement of automated systems that alert humans to potential legal issues before they become real legal catastrophes.
Other computer programs are also helping with the massive responsibility that our reliance on computers has brought on by vastly increasing the complexity of discovery now that businesses store data by the giga- or tera-byte. In some cases – such as the 2006 amendments to the FRCP, rules had to be re-written to make sense for the digital era. In this case lawyers had to follow business into the world of computers and found that old discovery rules written for the paper world didn’t always produce desirable results for the computer world.
The use of technology and the business model changes it has made possible has also raised new ethical questions. You might have heard of some raised by metadata in your legal profession class, but others abound. For example, how are ethical obligations changed when the lawyer and the client do not interact face-to-face but over the internet? What if a lawyer sets in motion a computer program that gives legal advice that turns out to be faulty? Can a computer program practice law without a license? What about confidentiality and data security? Is it ethical to trust a system – e-mail, “the cloud” – that inevitably breaks down every once in a while?
We will examine all of these areas later in this semester. We will also undertake a few projects to engage in the types of legal automation projects that are actually going on in the real world. In teaching this class, we will also strive to emphasize the continuity that does exist between new, technologically enabled practices and the practices of the past. The analog antecedents of document automation can be seen in legal forms books or law office precedent libraries. Metaphors to the physical world abound in the world of law v and technology. Some of available metaphors get stretched at the edges; a recent opinion involving the privacy rights attached to e-mails and reasoning by analogy to old fashioned mail was complicated enough that it caused Orin Kerr, a George Washington University law professor to post a blog entry one day and then another the next day saying he had misread the opinion.
You might be intuitively skeptical about the potential of computers to perform legal functions. Perhaps without even knowing exactly why, you might doubt the ability of computers to do meaningful work in the field of law. In the late 18th century a machine called The Turk was for a while a favorite curiosity across Europe. The “machine” would play chess – often quite well – to the astonishment of spectators across Europe and the United States.
The machine was, in fact, a hoax; a collaborator hidden within the table beneath the chess board actually moved the pieces. The real ingenuity had not been programming an “automaton” (in the language of the time) chess player, but in artfully hiding a human one. But what made it such a convincing hoax was that it had been well done and people actually believed they were witnessing something they intuitively didn’t believe was possible – a machine was playing chess.
To us, computers doing law seems similarly counterintuitive. But huge developments have been made since the days of The Turk in the late 18th century. Today, computers can play chess – quite well; in 1997 a machine built by IBM, Deep Blue, defeated world grandmaster Gary Kasparov in a series of 6 games (3 draws, 2 wins for the computer, and only one for Kasparov.) Deep Blue actually accomplished this win through “brute force” computing – being able to think between 17 to 19 moves into the future in the middle of the game. There are only so many possibilities, and with enough computing power they can all be considered. Checkers, which is mathematically a much more limited (bounded) universe than chess, has already been solved. All of the 5 billion billion (5 x 1020) possible game positions have been mapped into a database. A computer with access to the database cannot lose. If two such computers played each other they would tie.
Ares of the law where computers have made the most inroads have similarities with the game of checkers. Like a checkerboard, they are bounded areas of possibilities, and like chess, they are of limited granularity – there are only so many moves or so many possible combinations of facts or clauses in a document. They are rules based as opposed to case base. These bounded areas of the law are where we will spend much of the course time. Pick any area of law, and provided it is sufficiently bounded and rules based, someone will have attempted, or will soon attempt, to increase efficiency through a computer program of some sort.
Document assembly can take an area of law where a limited set of documents – or permutations of possible combinations – is used again and again. Based on a custom made interview set and a custom made set of possible clauses or document components, a program can determine what elements to include in a document and assemble them in the appropriate order. You will be designing document assembly projects to deal with a limited area of law – for example designing a system to build a nondisclosure agreement. As long as all the possible permutations are considered – as long as they are all in your database – the program will work. There might always be outliers, such as a new contract that calls for a clause or group of clauses not considered when the program was designed, but that is akin to changing the size of the board or the number of possible moves. Even the new moves can eventually be added to the database.
Other expert systems are used as advice systems. Once again these function in bounded areas of the law. For example, an advice system could function to administer a public benefits system or help decide if a proposed securities offering is legal. Such systems are now used by some of the biggest law firms in the world – with clients staking serious money on the strength of the advice. They have been used both as internal productivity tools and also as outward-facing subscription services where the client never interacts with a lawyer. You will probably also notice that these share more similarities with document assembly systems than differences. The basic architecture is the same but the output is advice or instructions rather than a document such as a contract.
Connectivity is becoming the default mode of the internet, machines, and people in general. Like other aspects of life, people would like the law to be interoperable. Making a computer that can read natural language (the way you and I speak and write every day) remains an elusive goal of artificial intelligence and computer programming that no one has yet gotten quite right. Despite this, computer “tagging” – XML and its variants – is making various it possible for computers to act as if they knew what various contract clauses and other legal bits of information mean. Like the database that enabled a computer program to “solve” chess, each bit of information that is to be tagged will first require human attention. However, a key benefit of a system of tagging is that it can be rapidly expanded and added to as needs arise. However, like other systems involving digital capture of analog information, sacrifices are made in terms of granularity in order to gain the benefits of computer efficiency.
Computers’ capabilities certainly do have their limits. This can be seen when very large or very fine grained systems are in play or vague language is used. We certainly have intuitive notions of subject matter that is not amenable to computer solutions. Sometimes it is a matter of the problem set being too large or the possible elements being too numerous. For example, chess is reckoned to have 1040 possible game positions. A computer that could solve checkers in a nanosecond would reportedly require 3,000 years to solve chess.
But still theoretically, chess could be solved. However, there might be things that computers can’t do at all. Reasoning by analogy may be chief among them. At various times, enthusiasts for computers and law or artificial intelligence and law have made perhaps unrealistic claims about the ability of computers to perform legal functions. Certainly many of them have not come to pass. To a certain extent, the term AI is laden with baggage picked up through association with the over-optimistic hopes and claims of its enthusiasts. Even if we imagine a world where a computer can solve for the 1040 game position possibilities of a game of chess – and that still can’t be done, but possibly will be in your lifetimes – this is still a far cry from the infinite possibilities of real life. We favor the more pragmatic modern view of computers’ potential in the legal field. Until computers can intuit and reason by analogy – and there’s no evidence they will be able to any time soon – there will always a significant area of the law where they are simply not useful. Drawing this line at, or slightly before, analogical reasoning, we are skeptical of the ability of computers to engage in case-based reasoning, and that will not be part of this course.
Slightly after the halfway point in the semester we will move beyond areas where computers have been doing a fairly good job of performing limited legal functions. Our next area will focus on an area where lawyers have had to follow the techies – they’ve had to learn new tricks to practice law in an era when almost all information in any organization of any size is stored in computers. For two or three weeks when we discuss e-discovery this class will proceed more like a regular law school class; we’ll read cases and discuss them. It is safe to say that e-discovery will remain a major area of the law for a significant part of your careers. In fact, it will probably be the main type of discovery you experience in the practice of law.
The advent of e-discovery and questions about how the traditional rules of discovery would apply in the electronic world led to serious confusion and ample opportunities for shenanigans in recent years. Now it seems that the broad outlines of the world of e-discovery are sketched out, although the details continue to develop. E-discovery has also lead to a vast increase in the importance of discovery relative to the matter at hand. It’s possibly limitless scope – it’s potential to run up costs that eclipse the amount in controversy of the underlying litigation – has led to the development of new concepts of proportionality, and rules for shifting the cost of document production in certain cases, and sometimes a new emphasis on cooperation. E-discovery has also helped spawn a new class of “litigation support” professionals straddling the boundary between law and technology. Lawyers who can speak the language of technology have come into increased demand as lawyers and IT must work together in the course of litigation and also before litigation starts to devise document management and retention policies.
Finally, we will look at the ethical implications of brought about by the use of technology in law. These are legion, and can range from whether a computer program can commit unlicensed practice of law, unbundling issues (whether a lawyer can represent a client in a limited portion of an issue without taking on responsibility for all aspects of thee matter), and issues of security, when is it safe to send sensitive information over the internet or similar networks. We’ll also look at some of the secondary effects of developing technology, such as a perceived power shift away from outside counsel to in-house counsel, changing business models, whether the rules familiar rules of professional conduct need to be changed in the name of economic efficiency or social justice.
To: Digital Drafting spring 2010 class
Re: First day of class – course overview
January, 2010
How are journalism and the practice of law similar? Practitioners of each see themselves as engaged in more than just a way to make a living, but in a profession. As a profession each sees itself as adhering to a sort of code of ethics and has its own set of standards and professional norms. Each of them has also had a relatively stable business model for the last hundred years or more. For lawyers it has been personalized service based on the billable hour. For journalism it has been a model of professional journalists employed by newspapers. The newspapers have made money selling a products at a nominal cost (the cost of buying a paper) making most of their money from selling advertisements.
We shouldn’t overemphasize the similarity between journalists and lawyers. Law is by far an older presentation and has generally been the more prestigious profession. Lawyers were held in high regard by founders of this country, as was a free press. The concept of the rule of law is at the heart of the U.S. Constitution, and it has generally been assumed that it is the job of lawyers to defend the rule of law. Likewise the idea of a free press is enshrined in the Constitution. (Although the free press of the time of the Constitution quite possibly had more in common with a bunch of anonymous bloggers than the professional journalism that developed later.)
Another trait journalism and law have in common is that in their current incarnations both came to be seen as a given – an unchangeable fact of life. It seems natural to assume that the New York Times will always print all the news that’s fit to print and that Big Law will always serve the needs of big corporations, at big prices, paying big salaries, and scooping up the best graduates of the best law schools. Yet, 2008 and 2009 have not been kind to either professional journalism or traditional law as practiced in the big firms. For journalism –scores of regional papers closed, the Boston Globe almost closed, the New York Times was seen as such a bad credit risk it was forced to pay an exorbitant 14 percent interest rate to borrow money. Industry soul-searching about the uncertain future was exemplified by efforts such as “Saving the news: Toward a national strategy for journalism”, a publication dedicated to looking for viable solutions to the newspaper industry’s problems. The last two years have not been kind to the legal profession either. Many firms have either closed or have drastically curtailed hiring.
Technology lies at the heart of both the newspaper industry’s problems and those of the legal profession. The once dominant newspaper of general circulation is now threatened by niche publications and free news – all available over the internet. Meanwhile, new advertising platforms, such as Craigslist, have taken the “bread and butter” of many papers – local advertising, especially classifieds.
Of course it is tempting to speculate that the widespread economic downturn is responsible for a decline in law firm business. However, lawyers have often been able to have it both ways. In the good times the firms transactional and mergers and acquisition departments could make a profit and in the bad times the litigation and bankruptcy departments could do pretty well too. In fact it is often taken as a given that litigation increases in a downturn. However, this downturn there have been real concerns that something might really be changing – that the long dominant law firm business model might be changing.
The dominant business model in question involves two hallmarks; 1) personalized service from the ground up, and 2) big firms with pyramid structures with a few partners at the top and lots of associates at the bottom (doing much of the work). Of course these firms are usually located near the businesses they serve – that is in very expensive parts of town – and employ any of the same signaling techniques once used by banks – big fancy buildings meant to convey strength and permanence. They also incidentally cherish a carefully groomed image for conservatism and risk aversion – a sort of counterweight to the animal spirits of the business clients they help navigate through the world of legal risk. Even if this description is skewed toward big firms serving the needs of businesses, it holds true that in general, we expect lawyers to be conservative, risk averse people. We expect fully customized service, even if it is expensive. And, although exceptions may be more common among smaller firms, the trend has been toward the pyramid-shaped business model.
The unchanging nature of the legal system is so remarkable – and perhaps different from other business sectors – that is almost a truism. At a recent meeting concerning overhaul of the Vermont judiciary, an outside consultant remarked that if an 18th century lawyer was transported to a 21st century courtroom the only difference he would notice would be the lack of wigs and the changed style of dress. Likewise, Richard Susskind, one of the foremost authors on law and technology, remarked to a Canadian bar magazine that not much has changed in the practice of law since the days of Jarndyce and Jarndyce – that is the time of Chares Dickens.
Other examples abound. Property law provides an extreme case. A myriad of antiquated forms and practices survive in part because no lawyer wants to be the one to try something new and have a conveyance later be challenged because she deviated from a time-honored form. While other businesses prodigiously give rise to neologisms, the jargon of law remains steadfastly conservative. Despite the inroads of the plain language movement, when the chips are on the table, most lawyers will not stray from time-honored terms of art.
For whatever reason or reasons, law has notoriously slow to adopt new technologies. A great many still-practicing lawyers can remember when it was seen as nearly scandalous that a lawyer would have a computer on is or her desk and do his or her own typing. That has now changed, but the change came more slowly to law than to other professions. A comparison with (the comparatively upstart) profession of accounting provides an example. Somewhere between ten and twenty years ago, the penetration of technology in the two professions was roughly equal. Accounting adopted technology much more quickly. And while the two business models were previously very similar, many of the trends technology is bringing about in law are much further along in accounting than in law.
Lawyers have long had the luxury of seeing themselves as involved in an endeavor that was somehow special or different from other aspects of business. This may be partly because of law’s dual nature as both a protector of the republic and also as a more mundane transactional formality or economic necessity.
While we would perhaps not want to delegate our First Amendment jurisprudence to a computer program, or outsource a federalism question to smart foreign lawyers willing to work for cheap, a computer program can almost certainly be programmed to provide advice in a bounded area of law – say securities compliance – or prepare a document such as an nondisclosure agreement or a will. While they might not sound as glamorous as arguing the next headline Supreme Court case, relatively repetitive – commoditizable – legal services comprise the bulk – the bread and butter – of the run of the mill business of a great many legal firms.
It is in these areas that technology is making inroads into the business of law. Computer programs are being used to draft contracts, give advice, administer government benefits, and generally allow businesses and individuals to do more without the direct intervention of legal counsel, or in some cases with the preventative involvement of automated systems that alert humans to potential legal issues before they become real legal catastrophes.
Other computer programs are also helping with the massive responsibility that our reliance on computers has brought on by vastly increasing the complexity of discovery now that businesses store data by the giga- or tera-byte. In some cases – such as the 2006 amendments to the FRCP, rules had to be re-written to make sense for the digital era. In this case lawyers had to follow business into the world of computers and found that old discovery rules written for the paper world didn’t always produce desirable results for the computer world.
The use of technology and the business model changes it has made possible has also raised new ethical questions. You might have heard of some raised by metadata in your legal profession class, but others abound. For example, how are ethical obligations changed when the lawyer and the client do not interact face-to-face but over the internet? What if a lawyer sets in motion a computer program that gives legal advice that turns out to be faulty? Can a computer program practice law without a license? What about confidentiality and data security? Is it ethical to trust a system – e-mail, “the cloud” – that inevitably breaks down every once in a while?
We will examine all of these areas later in this semester. We will also undertake a few projects to engage in the types of legal automation projects that are actually going on in the real world. In teaching this class, we will also strive to emphasize the continuity that does exist between new, technologically enabled practices and the practices of the past. The analog antecedents of document automation can be seen in legal forms books or law office precedent libraries. Metaphors to the physical world abound in the world of law v and technology. Some of available metaphors get stretched at the edges; a recent opinion involving the privacy rights attached to e-mails and reasoning by analogy to old fashioned mail was complicated enough that it caused Orin Kerr, a George Washington University law professor to post a blog entry one day and then another the next day saying he had misread the opinion.
You might be intuitively skeptical about the potential of computers to perform legal functions. Perhaps without even knowing exactly why, you might doubt the ability of computers to do meaningful work in the field of law. In the late 18th century a machine called The Turk was for a while a favorite curiosity across Europe. The “machine” would play chess – often quite well – to the astonishment of spectators across Europe and the United States.
The machine was, in fact, a hoax; a collaborator hidden within the table beneath the chess board actually moved the pieces. The real ingenuity had not been programming an “automaton” (in the language of the time) chess player, but in artfully hiding a human one. But what made it such a convincing hoax was that it had been well done and people actually believed they were witnessing something they intuitively didn’t believe was possible – a machine was playing chess.
To us, computers doing law seems similarly counterintuitive. But huge developments have been made since the days of The Turk in the late 18th century. Today, computers can play chess – quite well; in 1997 a machine built by IBM, Deep Blue, defeated world grandmaster Gary Kasparov in a series of 6 games (3 draws, 2 wins for the computer, and only one for Kasparov.) Deep Blue actually accomplished this win through “brute force” computing – being able to think between 17 to 19 moves into the future in the middle of the game. There are only so many possibilities, and with enough computing power they can all be considered. Checkers, which is mathematically a much more limited (bounded) universe than chess, has already been solved. All of the 5 billion billion (5 x 1020) possible game positions have been mapped into a database. A computer with access to the database cannot lose. If two such computers played each other they would tie.
Ares of the law where computers have made the most inroads have similarities with the game of checkers. Like a checkerboard, they are bounded areas of possibilities, and like chess, they are of limited granularity – there are only so many moves or so many possible combinations of facts or clauses in a document. They are rules based as opposed to case base. These bounded areas of the law are where we will spend much of the course time. Pick any area of law, and provided it is sufficiently bounded and rules based, someone will have attempted, or will soon attempt, to increase efficiency through a computer program of some sort.
Document assembly can take an area of law where a limited set of documents – or permutations of possible combinations – is used again and again. Based on a custom made interview set and a custom made set of possible clauses or document components, a program can determine what elements to include in a document and assemble them in the appropriate order. You will be designing document assembly projects to deal with a limited area of law – for example designing a system to build a nondisclosure agreement. As long as all the possible permutations are considered – as long as they are all in your database – the program will work. There might always be outliers, such as a new contract that calls for a clause or group of clauses not considered when the program was designed, but that is akin to changing the size of the board or the number of possible moves. Even the new moves can eventually be added to the database.
Other expert systems are used as advice systems. Once again these function in bounded areas of the law. For example, an advice system could function to administer a public benefits system or help decide if a proposed securities offering is legal. Such systems are now used by some of the biggest law firms in the world – with clients staking serious money on the strength of the advice. They have been used both as internal productivity tools and also as outward-facing subscription services where the client never interacts with a lawyer. You will probably also notice that these share more similarities with document assembly systems than differences. The basic architecture is the same but the output is advice or instructions rather than a document such as a contract.
Connectivity is becoming the default mode of the internet, machines, and people in general. Like other aspects of life, people would like the law to be interoperable. Making a computer that can read natural language (the way you and I speak and write every day) remains an elusive goal of artificial intelligence and computer programming that no one has yet gotten quite right. Despite this, computer “tagging” – XML and its variants – is making various it possible for computers to act as if they knew what various contract clauses and other legal bits of information mean. Like the database that enabled a computer program to “solve” chess, each bit of information that is to be tagged will first require human attention. However, a key benefit of a system of tagging is that it can be rapidly expanded and added to as needs arise. However, like other systems involving digital capture of analog information, sacrifices are made in terms of granularity in order to gain the benefits of computer efficiency.
Computers’ capabilities certainly do have their limits. This can be seen when very large or very fine grained systems are in play or vague language is used. We certainly have intuitive notions of subject matter that is not amenable to computer solutions. Sometimes it is a matter of the problem set being too large or the possible elements being too numerous. For example, chess is reckoned to have 1040 possible game positions. A computer that could solve checkers in a nanosecond would reportedly require 3,000 years to solve chess.
But still theoretically, chess could be solved. However, there might be things that computers can’t do at all. Reasoning by analogy may be chief among them. At various times, enthusiasts for computers and law or artificial intelligence and law have made perhaps unrealistic claims about the ability of computers to perform legal functions. Certainly many of them have not come to pass. To a certain extent, the term AI is laden with baggage picked up through association with the over-optimistic hopes and claims of its enthusiasts. Even if we imagine a world where a computer can solve for the 1040 game position possibilities of a game of chess – and that still can’t be done, but possibly will be in your lifetimes – this is still a far cry from the infinite possibilities of real life. We favor the more pragmatic modern view of computers’ potential in the legal field. Until computers can intuit and reason by analogy – and there’s no evidence they will be able to any time soon – there will always a significant area of the law where they are simply not useful. Drawing this line at, or slightly before, analogical reasoning, we are skeptical of the ability of computers to engage in case-based reasoning, and that will not be part of this course.
Slightly after the halfway point in the semester we will move beyond areas where computers have been doing a fairly good job of performing limited legal functions. Our next area will focus on an area where lawyers have had to follow the techies – they’ve had to learn new tricks to practice law in an era when almost all information in any organization of any size is stored in computers. For two or three weeks when we discuss e-discovery this class will proceed more like a regular law school class; we’ll read cases and discuss them. It is safe to say that e-discovery will remain a major area of the law for a significant part of your careers. In fact, it will probably be the main type of discovery you experience in the practice of law.
The advent of e-discovery and questions about how the traditional rules of discovery would apply in the electronic world led to serious confusion and ample opportunities for shenanigans in recent years. Now it seems that the broad outlines of the world of e-discovery are sketched out, although the details continue to develop. E-discovery has also lead to a vast increase in the importance of discovery relative to the matter at hand. It’s possibly limitless scope – it’s potential to run up costs that eclipse the amount in controversy of the underlying litigation – has led to the development of new concepts of proportionality, and rules for shifting the cost of document production in certain cases, and sometimes a new emphasis on cooperation. E-discovery has also helped spawn a new class of “litigation support” professionals straddling the boundary between law and technology. Lawyers who can speak the language of technology have come into increased demand as lawyers and IT must work together in the course of litigation and also before litigation starts to devise document management and retention policies.
Finally, we will look at the ethical implications of brought about by the use of technology in law. These are legion, and can range from whether a computer program can commit unlicensed practice of law, unbundling issues (whether a lawyer can represent a client in a limited portion of an issue without taking on responsibility for all aspects of thee matter), and issues of security, when is it safe to send sensitive information over the internet or similar networks. We’ll also look at some of the secondary effects of developing technology, such as a perceived power shift away from outside counsel to in-house counsel, changing business models, whether the rules familiar rules of professional conduct need to be changed in the name of economic efficiency or social justice.
Reading for first class.
- J. Jenkins, "What can information technology do for law?" http://jolt.law.harvard.edu/articles/pdf/v21/21HarvJLTech589.pdf
- Read the above course outline post from me.
- Begin reading "The End of Lawyers?: Rethinking the Nature of Legal Services" by Richard Susskind. Check back for exact page requirements.
Please complete the following by Jan 13.
- Read the above course outline post from me.
- Begin reading "The End of Lawyers?: Rethinking the Nature of Legal Services" by Richard Susskind. Check back for exact page requirements.
Please complete the following by Jan 13.
Utah "Enhanced Courtesy Brief" requirement
Utah is allowing, and strongly encouraging, the submission of briefs in PDF on CD. Material may be hyperlinked from within the brief:
http://www.utcourts.gov/resources/rules/urap/Supctso.htm
http://www.utcourts.gov/resources/rules/urap/Supctso.htm
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